United States v. Figueroa-Hernandez , 212 F. App'x 326 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-40140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MIGUEL FIGUEROA-HERNANDEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(1:05-CR-774-ALL)
_________________________________________________________________
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Miguel Figueroa-Hernandez appeals his guilty-plea
conviction and sentence for violating 8 U.S.C. § 1326(a) and (b) by
illegally reentering the United States after being deported
following an aggravated felony conviction.
Figueroa claims the district court erred, under the advisory
Guidelines, by enhancing his sentence pursuant to
§ 2L1.2(b)(1)(A)(ii) based on its determination that his 1994
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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conviction under TEX. PENAL CODE § 21.11(a) for indecency with a
child was a crime of violence. A review of the record shows that,
although Figueroa objected in district court to the enhancement, he
did so on grounds other than the following issue he raises here.
Therefore, we review only for plain error. E.g., United States v.
Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.), cert. denied, 513
U.S. 1175 (1995). For plain error, Figueroa must show a clear or
obvious error affected his substantial rights. E.g., United States
v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S.
1029 (2004). “If all three conditions are met, an appellant court
may then exercise its discretion to notice a forfeited error, but
only if ... the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Cotton, 535 U.S. 625, 631 (2002) (internal quotations and citations
omitted).
Guidelines § 2L1.2(b)(1)(A)(ii) provides for a 16-level
increase in a defendant’s base offense level if he was previously
deported after being convicted of a felony crime of violence.
The accompanying Application Notes define a “crime of violence”
either as one of a list of enumerated offenses or as “any offense
under federal, state, or local law that has an element the use,
attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2005).
The enumerated offenses include the “sexual abuse of a minor”.
Id.; see also United States v. Velazquez-Overa, 100 F.3d 418, 421-
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422 (5th Cir.), cert. denied, 520 U.S. 1133 (1997) (concluding
sexual abuse of a minor is “inherently violent” and is, therefore,
an enumerated “crime of violence”). Figueroa contends his
conviction under § 21.11(a) did not constitute “sexual abuse of a
minor” because, under that statute, a victim can be as old as a day
under seventeen and therefore would not fall under the generic,
contemporary meaning of the term “minor” as it is used in the vast
majority of statutes proscribing sexual activity with or against
persons below a certain age.
United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir.),
cert. denied, 531 U.S. 982 (2000) is dispositive. It held the
victim of a § 21.11(a)(2) offense, “a child younger than 17 years,
is clearly a minor”. Id. at 604. (internal quotations omitted).
It further noted that a violation of § 21.11(a)(2) is “sexual abuse
of a minor” as that term is used in its “ordinary, contemporary,
[and] common meaning”. Id. Finally, although it is unclear under
which section of § 21.11 Figueroa was convicted both subsections
employ similar language. See § 21.11(a). Needless to say, there
was no clear or obvious error.
Figueroa also challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors, rather than elements of the offense that must
be found by a jury. Figueroa’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although he contends that Almendarez-Torres was
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incorrectly decided and that a majority of the Supreme Court would
now overrule Almendarez-Torres in the light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding. See
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert.
denied, 126 S. Ct. 298 (2005). Figueroa concedes this claim is
foreclosed by Almendarez-Torres and raises it here only to preserve
it for further review.
AFFIRMED